Authorship, Audiences, and Anonymous Speech Lyrissa Barnett Lidsky

120 Cf. William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 117 n.51 (2003) (suggesting that books are an “intermediate case” between search and experience goods, insofar as one can examine a book before buying it , but the process is time-consuming and “there are too many books to be able to sample them in this way”); Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, 1133-34 (1995) (noting that an author’s reputation functions as a proxy for article quality, in much the same way that trademarks signal product quality).

121 Indeed, forgeries once exposed typically lose whatever critical acclaim they previously enjoyed, even though the physical attributes of the work remain the same. See Landes & Posner, supra note __, at 255-56 (discussing some possible reasons for this phenomenon); Lastowka, supra note __, at __.

122 See Roger D. Blair & Thomas F. Cotter, Are Settlements of Patent Disputes Illegal Per Se?, 47 Antitrust Bull. 491, 500-01 (2002) (noting that the price of brand name drugs sometime go up when generics enter the market, due to the brand loyalty and price insensitivity of some portion of consumers).

123See Landes & Posner, supra note __, at 195.

124 See id. at 208-09; Alex Kozinski, Trademarks Unplugged, 68 NYU L. Rev. 960, 969-70 (1993).

125 Indeed, consumers may even rely on the presumed characteristics of an author, such as age, race, social class, gender, and so forth, as proxies for quality or truth.

126 A more difficult case would be one in which the author remains anonymous as a matter of artistic choice. See infra notes __ and accompanying text. In such a case, revelation of the author’s identity might undermine the author’s message; a rule requiring such revelation therefore would deprive audiences of the opportunity to receive that message as intended. See also Heymann, supra note 1, at 1425 & n.153 (discussing instances in which the audience might be better off not knowing the author’s identity); Lastowka, supra note 1, at __ (similar); Levmore, supra note __, at __ (similar). While we admit these possibilities, we adhere to the argument above that in the general run of things knowledge of the author’s identity provides useful information. But we also concede that there can be instances in which the author’s interest in anonymity outweighs the audience’s interest in disclosure. See infra Part III.E.

127 See J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, §§ __ (2006) (discussing family and house marks).

128 See Heymann, supra note 1, at 1416 & n.128.

129 The same problem would attend any other type of misattribution.

130 See Levmore, supra note __, at __.

131 See Heymann, supra note 1, at __; Lastowka, supra note 1, at __.

132 The ‘value’ could be measured economically, or as a product of the author’s desire that the speech be persuasive, or even as a factor of the author’s need for affirmation.

133 See Thomas I. Emerson, The System of Freedom of Expression 6-9 (1970) (arguing that freedom of expression is essential as a means of assuring individual self-fulfillment”); C. Edwin Baker, Human Liberty and Freedom of Speech 47-50 (1989) (referring to “self-realization and self-determination as the key first amendment values”).

134 Jerry Kang, Cyber-Race, 113 Harv. L. Rev. 1130, 1131 (2000) (noting that the Internet, with its custom of anonymous and pseudonymous speech, “alters the architecture of both identity presentation . . .and social interaction . . . .”).

135 Lee Tien, Who’s Afraid of Anonymous Speech? McIntyre and the Internet, 75 Or. L. Rev. 117 (1996) (arguing that “anonymity is more than concealing authorial identity; speech is discursive interaction, and anonymity is useful for constituting individual and group identity in interaction”).

136 A British literary journal, Nemonymous, publishes stories that are not attributed to an author until the following installment. In other words, the reader does not know the name until after reading (and presumably evaluating) the story. The editor and publisher of Nemonymous is D.F. Lewis. [#todo: cite]. See Anne Ferry, Anonymity: The Literary History of a Word, 33 New Literary History 193, 197 (2002) (noting that in the nineteenth century, “[t]he desire of poets to escape over-personal interpretations of their poems” spurred them to publish anonymously); Donald W. Foster, Commentary: In the Name of the Author, 33 New Literary History 375, 391 (2002) (citing the example of Yehiel Feiner, who wrote about the Holocaust under the pseudonym that translates as “Prisoner,” because he “refuse[d] the right to valorize his individual experience” and “spoke as the invisible man, for one and all” who were killed at Auschwitz). See also Heymann, supra note __, at 1401-06; Lastowka, supra note __, at __.

Yet another possibility is that the author believes that anonymity is the more virtuous choice. Religious or ethical traditions may bestow greater esteem upon anonymous contributions to charities, for example. See Levmore, supra note __, at __ n.5. A less exalted motivation for anonymous contributions is that the donor may be less likely to be solicited for other worthy causes.

137 See McIntyre, 514 U.S. at ___.

138 See, e.g., Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1, 6-15 (1997).

139 See id. at 12. Of course, the author may have both intrinsic and instrumental reasons for wishing to publish anonymously or under an assumed name. Note also that these rights are not absolute, even in countries with robust moral rights traditions. See Michael B. Gunlicks, A Balance of Interests: The Concordance of Copyright Law and Moral Rights in the Worldwide Economy, 11 Fordham Intell. Prop. Media & Ent. L.J. 601, 628 (2001) (citing Adolf Dietz, Das Droit Moral des Urhebers im Neuen Französischen und Deutschen Urheberrecht 121 (1968)) (noting that German law, unlike French law, requires adherence to an express contractual duty for an author to remain anonymous, with exceptions allowed if the author must prove his authorship or if the work enjoys unforeseeable success).

140 The U.S. has incorporated some aspects of moral rights protection into its copyright and unfair competition laws over the past generation, however. See Cotter, supra note __, at 15-27. In 1990, for example, Congress amended the Copyright Act to include a new Visual Artists Rights Act (VARA). See Pub. L. No. 101-650, §§ 601-610, 104 Stat. 5089, 5128-33 (codified as amended in scattered sections of 17 U.S.C.). VARA confers upon the authors of qualifying “works of visual art,” see 17 U.S.C. § 101 (definition of “work of visual art”), a right of attribution, see id. § 106A(a)(1), (2), but it does not explicitly endow authors with a right to publish anonymously or pseudonymously. See 2 William F. Patry, Copyright Law and Practice 1037 n.88 (1994). Nevertheless, U.S. copyright law has permitted the registration of anonymous and pseudonymous works for close to 100 years, see Act of Mar. 4, 1909, Pub. L. No. 60-349, ch. 320, § 23, 35 Stat. 1075, 1082 (repealed 1976) (stating that the copyright term ran for 28 years from the date of publication, whether the work bore the author’s true name or was published anonymously or pseudonymously), though prior to 1909 the copyright status of anonymous works was precarious. See 1 Patry, supra note __, at 20 (stating that some early state copyright laws declined to extend protection to anonymous or pseudonymous works); Stenographic Report of the Proceedings of the First Session of the Conference on Copyright, May 31-June 2, 1905, in 1 Legislative History of the 1909 Copyright Act (E. Fulton Brylawski & Abe Goldman eds. 1976), at C40 (comments of Register of Copyrights Thorvald Solberg that, as of 1905, an author who wished to obtain federal copyright protection and to remain anonymous had to arrange for another to file the registration as copyright proprietor).

141 For discussion of the piecemeal nature of whistleblower protection laws, see generally D. Westman and N. Modesitt, Whistleblowing: Law of Retaliatory Discharge 67-75 (2d ed. 2004).

142 Government employees have First Amendment rights when speaking “as citizens on matters of public concern,” but not when speaking “pursuant to their official duties.” See Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006). The First Amendment prevents the infringement of the autonomy interest of the employee when speaking as a citizen as well as protecting the public interest in receiving information. See id. (“[W]idespread costs may arise when dialogue is repressed.”); San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (noting that the public has an “interest in receiving informed opinion”) (emphasis added).

143 See George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 3 (1989) (summarizing a U.S. study on the existence, causes, and effects of SLAPPs). While many state legislatures have enacted “anti-SLAPP” legislation in the past fifteen years, Lauren McBrayer, The DirecTV Cases: Applying Anti-SLAPP Laws to Copyright Protection Cease-and-Desist Letters, 20 Berkeley Tech. L.J. 603, 609-10 (2005), companies are now merely shifting their strategies, and in some cases are using anti-SLAPP legislation itself as a sword. See id. at 607.

144 Such records are often confidential, but they are potentially discoverable in litigation. See EEOC v. Univ. of Pa., 493 U.S. 192 (1990).

145 See Levmore, supra note __, at 2193.

146 Of course, social ostracism can result only if, absent anonymity, the speaker’s associates would not know what she really thinks about a given issue. The speaker’s interest in concealing this information from others might be viewed as an aspect of her interest in privacy, and thus more akin to a moral-rights-like interest. Whether or to what extent this interest ought to be protected is, of course, a matter of debate. From a purely instrumental perspective, the right of privacy has always had its critics, who view it as a means for persons to conceal truthful information from their associates. See Richard A. Posner, The Economics of Justice 232-42 (1981); Richard A. Posner, The Right of Privacy, 21 Ga. L. Rev. 393, 422 (1978). Many observers nevertheless respect some measure of privacy for normative reasons, see, e.g., Julie C. Inness, Privacy, Intimacy, and Isolation (1992); Robert C. Post, The Social Foundations of Privacy, 77 Cal. L. Rev. 957 (1989), and perhaps for instrumental reasons as well. To borrow yet another analogy from the law of intellectual property, a person’s private thoughts could be analogized to a trade secret. Arguably the principal instrumental benefit of trade secret protection is that it reduces the need for persons in possession of commercially valuable secret information to engage in excessive, socially wasteful efforts to keep that information to themselves (e.g., by building impregnable fortresses or only hiring trusted family members as employees). See Dan Burk, Muddy Rules for Cyberspace, 21 Cardozo L. Rev. 121, 172 (1999). Perhaps, in the absence of some legal entitlement to privacy, people would engage in similarly excessive efforts to keep private facts concealed.

147 See Roe v. Wade, 410 U.S. 113, 120 n.4 (1973) (noting without comment that the petitioner’s name was a pseudonym). Federal Rule of Civil Procedure 10(a) requires every pleading to include the caption of the case, including the parties’ names, and Rule 17(a) requires that every action be prosecuted in the name of the real party in interest. See Fed. R. Civ. Proc. 10(a), 17(a). In cases implicating “significant privacy interests,” however--principally challenges to laws regulating such matters as sexual behavior, birth control, and abortion--courts sometimes permit parties to litigate under pseudonyms, though even in this context often on condition that the party’s real name be disclosed to the court and to the defense. W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10^th Cir. 2001) (citing Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10^th Cir. 1989); see also Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 684-87 (11^th Cir. 2001). The practice of not publishing the names of alleged rape victims or underage criminal defendants, either in news accounts or in reported cases, is based upon a similar rationale, although in these instances the parties would always be aware of the identities of the alleged victim and of the defendant, and their names would usually be used in open court. And sometimes fear of outright retaliation, not just ostracism, appears to predominate. See Doe v. Barrow Cty., 219 F.R.D. 189, 192-94 (N.D. Ga. 2003) (permitting anonymous challenge to Ten Commandments display).

148 See Anne Ferry, Anonymity: The Literary History of a Word, 33 New Literary History 193, 195 (2002) (noting that in the seventeenth century “it was considered altogether improper for gentlemen and persons of rank to appear in print as poets, so that [those] who wanted to display their wit as a way of advancing themselves in courtly circles were driven to publish verse unsigned but under fancy disguises that could be seen through . . .”); Donald W. Foster, Commentary: In The Name of the Author, 33 New Literary History 375, 379 (2002) (observing that in early modern England, “[p]ersons of rank . . . were more heavily invested in their personal name than in their literary product . . .”).

149 “The motivations for publishing anonymously . . . have included an aristocratic or gendered reticence, religious self-effacement, anxiety over public exposure, fear of prosecution, hope of an unprejudiced reception, and the desire to deceive.” Robert J. Griffin, Anonymity and Authorship, 30 New Literary Hist. 877, 884 (1999). Another example that might fall within this category is that of a speaker who publishes anonymously or under a pseudonym to avoid the audience’s perceived irrational bias. As Levmore and Heymann both note, for example, women authors often resorted to male-sounding pseudonyms (e.g., George Sand) so that their works would be taken seriously within a male-oriented culture. See Heymann, supra note 1, at 1398-1400; Levmore, supra note __, at 2208-09, 2213-14.

150 See also Heymann, supra note 1, at 1404-05.

151 It does this in part by encouraging speakers to contribute to public discourse without fear. Professor Kang observes that “individuals are less fearful in cyberspace” because their “physical body is never at risk.” See Kang, supra note __, at 1161. He also contends that “cyberspace will expose individuals to a greater audience of potential communications partners, including those of other races.” Id. at 1161-62. Anonymous speech also encourages audiences to listen without allowing the identity of the speaker to prejudice their interpretation of his message. See Robert C. Post, Constitutional Concept, supra note __, at 640 (“In most circumstances, we attend as carefully to the social status of a speaker, and to the social context of her words, as we do to the bare content of her communication.”); Lidsky, supra note __, at 896 (arguing that the widespread use of anonymity and pseudonymity on the Internet “disguises status indicators such as race, class, gender, ethnicity, and age, which allow elite speakers to dominate real-world discourse”). Lee Bollinger offers another argument that, if true, applies equally well to anonymous speech; he contends that one of the functions of the First Amendment is to make us more tolerant of others by bringing us into contact with diverse ideas and viewpoints. Lee Bollinger, The Tolerant Society ([#todo: 19..] ).

152 See Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521, 527. Anonymity also enables speakers to initiate social movements to challenge repressive regimes. See Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 U. Pa. L. Rev. 119 (2001).

153 See Mills v. Alabama, 384 U.S. 214, 218 (1966) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”); Alexander Meiklejohn, Free Speech and its Relation to Self-Government (1948) (arguing that speech not relevant to self-government is protected by due process clause, but not by First Amendment); The First Amendment is an Absolute, 1961 Sup. Ct. Rev. 245, [#todo:]__ (1961); Cass R. Sunstein, Exchanges; Speech in the Welfare State, 59 U. Chi. L. Rev. 255, 313-14 (1992) (noting the First Amendment reflects a “structural commitment to deliberative democracy”).

154 This is a central plot line in Iain Pears’ novel, The Portrait (2006). In fact, it is a motive for the anonymous reviewer’s murder.

155 Indeed, encouraging citizens to make anonymous accusations against one another is a hallmark of a totalitarian state.

156 In addition, it may be more difficult to track down and punish a truly anonymous speaker. Whether a rule forbidding anonymity would give rise to substantial social benefits for this reason alone, all other things being equal, is nevertheless difficult to say. People who wished to speak falsely might simply flout a rule requiring them to disclose their true identities. Compare McIntyre, [#todo: cite], with id. at __ (Scalia, J., dissenting).

Note also that, even when a speaker tells the truth, retaliation may be justifiable because he has breached a legal obligation of confidentiality. A doctor who makes an anonymous call disclosing a patient’s medical condition to an employer deserves “retaliation,” whether it be in the form of a lawsuit or professional discipline. Examples of fiduciary or contractual obligations not to reveal truthful information abound.

157 [#todo: CITE]

158 Anonymity appears to produce a disinhibiting effect that is magnified in computer mediated communications. See M.E. Kabay, Anonymity and Pseudonymity in Cyberspace: Deindividuation, Incivility and Lawlessness Versus Freedom and Privacy, Paper presented at the Annual Conferences of the European Institute for Computer Anti-virus Research (EICAR), Munich, Germany 16-8 March 1998. (p. 10—arguing that anonymity lowers peoples “normal inhibitions” because “the deindividuation of anonymous people lowers their self-reflective propensities”); Danah Boyd, Faceted Id/entity, Managing Representation in a Digital World, [cite], at 30 (“[I]n anonymous situations, people’s lack of fear of retribution or sense of other people undermines the effectiveness of social regulation.”); Adam Joinson, Causes and Implications of Disinhibited Behavior on the Internet, in Psychology and the Internet (Jayne Gackenback, ed. [#todo: year]).

159 See supra note ___.

160 To be sure, the First Amendment does not protect fraud: for example, using fake identification to obtain liquor or cigarettes, to register to vote, or to obtain a driver’s license or passport. Clearly, the state may require disclosure of identity in order to obtain a wide range of government benefits, without incurring liability for compelling speech. [CITE] Our examples above, however, touch upon the publication of core First Amendment speech to obtain collateral benefits such as public acclaim or political favors.

161 See, e.g., Paul Zweig, Walt Whitman: The Making of the Poet 271-73 (1984) (discussing Walt Whitman’s anonymous self-reviews).

162 Steven D. Levitt & Stephen J. Dubner, Freakonomics: A Rogue Economist Explores the Hidden Side of Everything 133 (2005) (discussing John Lott’s favorable self-reviews under the pseudonym “Mary Rosh”). An author’s publication of anonymous or pseudonymous reviews of his own work might be viewed as manifestations of a broader phenomenon, in which authors publish or broadcast studies without revealing that they are being funded by a person or entity that stands to benefit from a favorable review. Such practices may be viewed as ethical lapses, precisely because readers or viewers are more likely to find the review credible in the absence of such information.

163 An analogy can be drawn to the firm that wants consumers to recognize its trademark as symbolizing a consistent level of quality. See supra text accompanying note __

164 Quote NYT v. Sullivan (“calculated falsehood has no value in public debate;” only reason we protect some falsehood is because it is “inevitable”).

165 Which is not to say that all cases arguably falling into this category would be easy cases. As before, speakers may have mixed motives for retaining anonymity--or it may be difficult to discern what the speaker’s motive is at all. Political speech in particular may be difficult to disentangle. On the one hand, speakers may rightly fear retaliation for speaking their minds in a public forum. On the other, knowing who has funded a political advertisement provides some insight into who is likely to be showered with benefits flowing from the public fisc, if the candidate whose position aligns with the advertisement comes to power.

166 And indeed, whistleblowers, informants, and other would-be truth-tellers often do have to reveal their identities eventually, for example if they are called to testify in court. Due process is surely a sufficiently weighty counterinterest to overcome the speaker’s interest in anonymity--which simply shows that the strong version of the right to speak anonymously, which some might read into McIntyre, cannot be the last word. Moreover, as suggested in the text above, government sometimes does try to protect non-anonymous whistleblowers from retaliation—for example, through anti-SLAPP legislation, see, e.g., Cal. Civ. Proc. Code § 425.16 (2006); witness protection programs, see Witness Security Reform Act of 1984, 18 U.S.C. §§ 3521-28 (2000); and rules protecting the identity of confidential tipsters under some circumstances, see, e.g., Scher v. United States, 305 U.S. 254 (1938) (stating that, in a criminal case, disclosure of an informer’s identity is forbidden ‘unless essential to the defense’”). On our analysis above, where such protections are in place, the social interest in permitting anonymity is reduced as well.

167 Though, concededly, not all audience members will respond reasonably to speech by an unknown author, as the prevalence of spam emails suggests. After all, if no one responded to the often-pseudonymous offers of sexual enhancement or stock market tips, the spam would stop coming.

168 Here the rationale in favor of anonymity is similar to that which underlies copyright and some other forms of intellectual property protection: that, while copyright may give rise to a variety of social costs (transactions costs, monopoly costs, even some restrictions on freedom of speech), on balance it creates a surplus of social benefits, by encouraging the production and publication of works of authorship that otherwise would not be produced or published. The rationale is also similar to that underlying various evidentiary privileges, such as the attorney-client and reporters’ privileges. See [CITES]. Similarly here, a rule that accords speakers the right to speak anonymously might maximize social welfare, by encouraging more speech, even if on occasion the rule deprives the public of some useful information about the value of that speech.

169 Indeed, the problems with a purely utilitarian analysis of anonymous speech go beyond mere indeterminacy. Whether the costs and benefits of anonymous speech are even commensurable with respect to one another is debatable: as we suggested above, for example, if the autonomy interests in support of a right to speak anonymously are worthy of respect, how exactly does one determine the optimal tradeoff in return for a reduction in harmful speech? More importantly, and as others before us have noted, the social welfare approach appears inconsistent with a good deal of existing First Amendment jurisprudence (even if, as we would argue, it captures some aspects of that jurisprudence). Much speech may be of little value, or even positively harmful, but few accounts of the First Amendment make these observations paramount, or even relevant under all circumstances. See, e.g., Jed Rubenfeld, The Freedom of Imagination: Copyright’s Constitutionality, 112 Yale L.J. 1, 20-24 (2002).

170 But see supra note ___.

171 See Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767, 818-21 (2001), which argues that the First Amendment’s main aim is to protect individual autonomy via the “anti-orthodoxy principle,” which is “absolutely incompatible with cost-benefit, balancing approaches to the First Amendment.” Rubenfeld notes, however, that the “domain of speech to which the anti-orthodoxy principle applies is not all encompassing.” Id.

172 Abrams v. United States, 250 U.S. 616, 630 (Holmes, J. and Brandeis, J., dissenting) (“[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .”).

173 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

174 See Marc Franklin, David A. Anderson, and Lyrissa Barnett Lidsky, Mass Media Law 7-12 (7^th ed. 2005).

175 Id. at 628-29.

176 Id. at 629.

177 Justice Brandeis further refined the test in Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring): “[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by processes of education, the remedy to be applied is more speech, not enforced silence.” Professor Blasi has called Brandeis’ opinion in Whitney “arguably the most important essay ever written . . . on the meaning of the first amendment.” Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 Wm & Mary L. Rev. 653, 668 (1988).

178 Id. at 630-631.

179 As scholar G. Edward White has noted, Holmes, despite his famous skepticism about human nature, believed that “humans are inherently rational beings.” G. Edward White, The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations, 70 N.Y.U. L. Rev. 576, 579 n.11 (1995); see also Lidsky, Brandenburg and the United States War on Incitement Abroad: Defending a Double Standard, 37 Wake Forest L. Rev. 1009, 1017-1027 (2002) for a discussion of the intellectual contributions of Holmes and Brandeis to modern First Amendment theory.

180 274 U.S. 357 (1927) (Brandeis, J., concurring).

181 Id. at 375-76.

182 Id. at 377.

183 Id. at 374.

184 Id. at 377.

185 For further discussion, see Lyrissa Barnett Lidsky, Brandenburg and the United States’ War on Incitement Abroad: Defending a Double Standard, 37 Wake Forest L. Rev. 1009, 1023-4 (2002).

186 This article makes no claim about original intent, but the following statement from Thomas Jefferson’s First Inaugural displays a rationalist bent: “If there be any among us who would wish to dissolve this Union or change its republican form, let them stand undisturbed as mounuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” Gertz v. Robert Welch, 418 U.S. 323, 340 n.8 (1974) (quoting Jefferson).

187 Brandenburg v. Ohio, 395 U.S. 444 (1969). The incitement test has been adapted to tort context as well. For extensive and thoughtful discussion, see David A. Anderson, Tort Law and Incitement, 37 Wake Forest L. Rev. __ (2002)

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